FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZABAWA & RAGHEB | [2020] FCCA 2504 |
| Catchwords: FAMILY LAW – Parenting – interim hearing - children living with father and step-mother by consent – children self-place with mother – mother alleges child abuse – father alleges mother fabricating allegations and falsely persuading children they have been abused – children gave family consultant history of abuse by step-mother holding under water at a pool – contemporaneous police records investigating pool event reported that children did not support mother’s allegations of drowning or assault – police observed mother trying to put words in children’s mouths during interview – police and DCJ form adverse view of mother – children’s reason for self-placing discipline in father’s household – mother has not managed to get children to school – strong evidence of prescription drug abuse by mother – probabilities strongly support father’s case – children to live with father – supervised time only with mother – consequential orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2), 60CC(3), 64B, 64C, 64D, 65AA, 69ZL, Part VII Evidence Act 1995 (Cth), s.78 |
| Cases cited: Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101 Eaby & Speelman (2015) FLC 93-654 Deiter & Deiter [2011] FamCAFC 82 B & B [1993] FamCA 143; (1993) FLC 92-357 Stott & Holgar and Anor [2017] FamCAFC 152 Re David [1997] FamCA 48, (1997) 22 Fam LR 489 |
| Applicant: | MS ZABAWA |
| Respondent: | MR RAGHEB |
| File Number: | SYC 7172 of 2014 |
| Judgment of: | Judge B Smith |
| Hearing date: | 17 August 2020 |
| Date of Last Submission: | 17 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid NSW Bankstown Family Law |
| Solicitors for the Respondent: | John Spence & Associates | |
| Solicitors for the Independent Children's Lawyer: | Ark Law Lawyers | |
ORDERS
The matter be listed on 9 March 2021 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
All prior parenting Orders be discharged.
The children X born in 2012 and Y born in 2013 shall live with the father.
The children shall spend no time with, and have no communication with, the mother other than in accordance with these Orders.
The father or his agent shall collect the children from school at the end of the school day on Wednesday, 19 August 2020:
(a)Neither the mother nor her agents shall collect the children from school from this date; and
(b)A copy of these Orders is to be provided to the children’s school.
Within 72 hours of the making of these Orders,…
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- AGLC
- Zabawa and Ragheb [2020] FCCA 2504
- Case
- [2020] FCCA 2504
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children in circumstances where allegations of abuse had been made by the mother, and counter-allegations of fabrication and undue influence were raised by the father. Key issues included the credibility of the allegations, the children's reasons for their placement with the mother, and the impact of the mother's alleged prescription drug abuse and her conduct during a police interview.
Judge B Smith's reasoning focused on the evidence presented, noting that contemporaneous police records concerning an alleged pool incident reported that the children did not support the mother's allegations of drowning or assault. The police also observed the mother attempting to influence the children's statements during an interview, and both the police and the Department of Communities and Justice formed an adverse view of the mother. The court found that the children's stated reason for self-placing with the mother was discipline in the father's household, and that the mother had not managed to get the children to school. The court also noted strong evidence of prescription drug abuse by the mother. Based on these factors, the court concluded that the probabilities strongly supported the father's case.
Consequently, the court ordered that the children shall live with the father. All prior parenting orders were discharged. The children were to have no time or communication with the mother other than through supervised contact arrangements at a designated contact centre, with the father bearing the costs. Until these arrangements could commence, supervised time with the mother was to be facilitated by a family services agency, also at the father's expense. The court also made orders restraining both parties from denigrating each other and from physically disciplining the children, and required them to engage in family therapy.
Orders
Orders of the court
1.
The matter be listed on 9 March 2021 at 9:30am for mention.
2.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
3.
All prior parenting Orders be discharged.
4.
The children X born in 2012 and Y born in 2013 shall live with the father.
5.
The children shall spend no time with, and have no communication with, the mother other than in accordance with these Orders.
6.
The father or his agent shall collect the children from school at the end of the school day on Wednesday, 19 August 2020:
(a) Neither the mother nor her agents shall collect the children from school from this date; and
(b) A copy of these Orders is to be provided to the children’s school.
7.
Within 72 hours of the making of these Orders, the parties shall contact Region B Contact Centre at Suburb C for the purpose of completing an intake/ assessment and placing their names on the waitlist.
8.
The children shall spend time with the mother at Region B Contact Centre at such times and dates as arranged by the Centre and the father shall bear the costs of this time.
(a) For the purpose of this Order all visits shall occur during the weekends only.
(b) For the purpose of this Order visits should occur every weekend, subject to the capacity of the Region B Contact Centre to facilitate weekly visits.
9.
Until such time that the children commence spending time with the mother at Region B Contact Centre, the children shall spend time with the mother supervised by D Family Services:
(a) Once per fortnight for a period of two hours and the father shall pay for these visits;
(b) In addition to Order 9(a) and subject to the mother being in a position to pay, an additional visit in the intervening week at such times as nominated by the contact service.
(c) All visits shall occur during the weekends only.
10.
To facilitate time in accordance with Order 9, both parties shall:
(a) contact D Family Services within 72 hours of the date of these Orders to arrange an intake and assessment for the children;
(b) follow all reasonable directions of staff; and
(c) in relation to Order 9(b) the mother shall notify the father of her capacity to afford said time, and the father shall do all things necessary to facilitate such time occurring.
11.
Upon a position becoming available at the Region B Contact Service, if such time is to occur any less frequently than once every week, the mother is at liberty to arrange and pay for additional visits with the children, to occur supervised by D Family Services, at such times nominated by the agency. For the purposes of this Order:
(a) the mother shall notify the father of her capacity to afford said time;
(b) the mother shall bear the costs of the supervised time; and
(c) where the mother is able to afford this supervised time, the parties shall do all acts and things necessary to implement such time.
12.
If the children run away from the father to the mother, the mother is required by injunction to immediately notify the father by telephone or text and to do all things reasonably necessary and required to facilitate the immediate return of the children to the father.
13.
The children’s time with the mother will be suspended during the time of the father’s holidays as set out below, if and only if, he and the children are not living at their usual residence and are away on holidays.
14.
The parties do all things reasonable and necessary to obtain a mental health plan which facilitates attendance upon Dr E.
15.
The parties do all things reasonable and necessary to engage in reportable Family Therapy with Dr E.
16.
That leave be granted to the parties to provide a copy of these Orders and all other material in the proceedings to the office of Dr E.
17.
Each party is hereby restrained from:
(a) Denigrating the other party and/or any member of the other parties family or household to, or in the presence or hearing of, the children and both the parties shall use their best endeavours to ensure that no third party denigrates the other party and/or any member of the other parties family or household to, or in the presence or hearing of, the children; and
(b) Physically disciplining the children, or from smacking, hitting, pinching or pushing the children for any reason and both the parties shall use their best endeavours to ensure that no third party physically discipline the children.
18.
Liberty is granted to the Independent Children's Lawyer to approach the Court in Chambers to have the matter relisted on short notice.
NOTES:
19.
In order to give effect to these Orders, the father will collect the children from F School on 19 August 2020
20.
The father will be on holidays during the following periods:
(i) 17-25 December 2020
(ii) 15-24 January 2021
(iii) 5-11 April 2021.
21.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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